EB-5 Regional Center Law to be Extended

Recently, Congress reached bipartisan agreement to extend the federal budget, which includes the EB-5 Regional Center statute, via a “continuing resolution.”  The latest news from Washington, D.C. is that the Regional Center statute will again be extended to December 7, 2018, without change.

H-1B to EB-5 for Indian Investors

I was asked by an Indian EB-5 investor whether an approved I-526 petition, similar to an approved I-140 immigrant petition, would allow an H-1B visa to be extended while the H-1B visa holder is waiting for his or her priority date to become current.  (Note that quota retrogression is anticipated for EB-5 India investors in Spring 2019, like for Chinese and Vietnamese investors today). 

H-1B regulations allow H-1B visa extensions beyond the standard 6 years only when an I-140 immigrant petition is approved for a worker who qualifies under the EB-1, EB-2 or EB-3 immigrant visa categories.  For example, an employer, such as a technology company, can file an I-140 petition to sponsor an H-1B worker, a professional holding an advanced degree, for a second preference employment-based immigrant visa.  Once the I-140 petition is approved, the H-1B worker can extend his or her H-1B status until a visa number becomes available and he or she may immigrate.

The H-1B regulations make no mention of EB-4 (primarily religious immigrant workers) or EB-5 immigrant visa categories.  However, the statute only refers to the filing of an “employment based (EB) petition” as a means for extension of H-1B status. 

Additionally, there exists an old letter from the former director of USCIS (then INS) that says an I-360 petition also qualifies for H-1B extension (an I-360 is for a widow of a U.S. citizen, among others).

In sum, it appears that per the statute, USCIS should permit an approved I-526 filed for an Indian (also Vietnamese or Chinese) investor for extensions of their H-1B status in one-year increments as with an approved I-140.  But it is not certain that USCIS will adopt this interpretation of the statute.  A colleague is filing such an application now.  He will let me know the outcome of that application.

Presentation for Potential Indian EB-5 Investors

I am speaking at the ILW event for Indian H-1B visa holders interested in EB-5 visas on October 12, 2018 in San Jose, California.